Citation Nr: 0118523
Decision Date: 07/17/01 Archive Date: 07/24/01
DOCKET NO. 00-02 553 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in New
Orleans, Louisiana
THE ISSUE
Entitlement to service connection for a left ankle
disability.
REPRESENTATION
Appellant represented by: The American Legion
WITNESSES AT HEARINGS ON APPEAL
Appellant and K. J.
ATTORNEY FOR THE BOARD
Milo H. Hawley, Counsel
INTRODUCTION
The veteran had active service from August 18, 1998 to
September 14, 1998.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a December 1998 decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
New Orleans, Louisiana.
FINDING OF FACT
A tiny avulsion-type fracture of the left ankle existed prior
to service but underwent an increase in severity during
service in the form of chronic left ankle sprain.
CONCLUSION OF LAW
Avulsion fracture of the left ankle preexisted service but
was aggravated during service in the form of chronic left
ankle sprain. 38 U.S.C.A. §§ 1110, 1153 (West 1991);
Veterans Claims Assistance Act of 2000 (VCAA), Pub. L.
No. 106-475, §§ 3(a), 4, 114 Stat. 2096, 2097-99 (2000) (to
be codified as amended at 38 U.S.C. §§ 5103A, 5107);
38 C.F.R. § 3.306(b) (2000).
REASONS AND BASES FOR FINDING AND CONCLUSION
After a review of the record, the Board has decided that
service connection may be granted for chronic left ankle
sprain as an aggravation of avulsion fracture of the left
lateral malleolus. The reasons for this decision are set
forth below.
Service connection may be granted for disability resulting
from disease or injury incurred or aggravated by wartime
service. 38 U.S.C.A. § 1110. Clear and unmistakable
evidence (obvious or manifest) is required to rebut the
presumption of aggravation where the preservice disability
underwent an increase in severity during wartime service.
This includes medical facts and principles which may be
considered to determine whether the increase is due to the
natural progress of the condition. Aggravation may not be
conceded where the disability underwent no increase in
severity during service on the basis of all the evidence of
record pertaining to the manifestations of the disability
prior to, during, and subsequent to service. 38 U.S.C.A.
§ 1153; 38 C.F.R. § 3.306(b).
Presumption of soundness rebutted
The report of the veteran's service entrance examination is
not of record. A report of medical history, completed in
conjunction with his service entrance examination, does not
reflect any reference to left ankle disability. However, an
August 1994 private treatment record, received in April 2000,
reflects that the veteran had sprained his left ankle.
X-rays were negative and the diagnosis was recurrent sprain
of the left ankle. Apparently as a result of treatment, on
August 26, 1998 a request was directed to the Huey P. Long
Medical Center in Louisiana for records relating to treatment
of the veteran's left ankle prior to service.
Records from the Huey P. Long Medical Center reflect that the
veteran was seen in August 1997. These records indicate that
the veteran had twisted his left ankle on that day. The
diagnosis was sprain. An X-ray of the left ankle revealed
soft tissue swelling overlying the lateral malleolus. There
was a tiny calcific density associated with the tip of the
medial malleolus which could represent a tiny avulsion-type
fracture, though possibly old. July 1998 private treatment
records reflect that the veteran reported twisting his
"right" ankle the day before. The report of X-ray relating
to the July 1998 treatment also refers to the veteran's right
ankle. The X-ray indicates that the right ankle was negative
for fracture or dislocation.
The record clearly indicates that prior to service the
veteran had experienced an avulsion fracture of the left
lateral malleolus. Thus, the presumption of soundness at
service entrance is rebutted. The Board will now consider
whether the veteran whether that disability was aggravated by
his service.
Left ankle disability in service
A service medical record, printed on August 28, 1998,
reflects that the veteran complained of intermittent left
ankle pain of a 1- to 2-month duration. There was a popping
sound when rotating the left ankle. The assessment included
chronic ankle pain secondary to old avulsion fracture of the
lateral malleolus. The report of a service medical
evaluation board reflects that the veteran had a history of
avulsion fracture in August 1997. The veteran was seen with
complaints of increased pain in his ankle with the rigors of
physical training, jumping, and marching. The diagnosis was
chronic left ankle pain secondary to avulsion fracture of the
lateral malleolus.
Aggravation
The first time that any disability related to the veteran's
left ankle is characterized as chronic is during his active
service. His disability was characterized as chronic after
the veteran participated in events related to his inservice
basic training and this characterization was made by a
physician during the veteran's active service. Prior to the
veteran's active service, treatment records indicate that the
veteran was seen in 1994 and 1997, but there is no indication
that he was seen for ongoing complaints related to the left
ankle other than those associated with acute injury, noting
that the treatment in July 1998 was related to the veteran's
right ankle.
Post service treatment indicates that the veteran continues
to be seen for complaints relating to chronic left ankle
sprain. February and November 1999 private treatment records
reflect the veteran's complaints regarding his left ankle and
indicate diagnoses including arthralgia of the left ankle and
chronic left ankle pain. An April 2000 treatment record
indicates that the veteran had sustained a hairline fracture
of the left ankle and had been seen multiple times for pain
in that ankle. An April 2000 statement from Bruce Craig,
M.D., a private physician, indicates that the veteran has a
chronic left ankle sprain that had been aggravated by his
basic training in service.
Since the veteran's avulsion fracture of the lateral
malleolus underwent an increase in severity during his
wartime service as is demonstrated by medical evidence
indicating that his left ankle disability became chronic
during his active service, there is a presumption of
aggravation. The record does not contain evidence to rebut
this presumption. The post service medical evidence
continues to characterize the veteran's left ankle disability
as chronic. In addition, there is competent medical evidence
associating the chronic left ankle sprain with aggravation
during the veteran's active service. Therefore, service
connection may be granted for chronic left ankle sprain as an
aggravation of avulsion fracture of the left lateral
malleolus.
Veterans Claims Assistance Act (VCAA)
The duty to assist and notification requirements have
recently been reaffirmed and clarified. See VCAA. The
veteran has been afforded a VA examination and two personal
hearings. In light of the Board's decision herein, the Board
concluded that it could proceed, without prejudice to the
veteran, to decide the issue of service connection. See
Bernard v. Brown, 4 Vet. App. 384 (1993).
ORDER
Service connection for chronic left ankle sprain as an
aggravation of avulsion fracture of the left lateral
malleolus is granted.
CONSTANCE B. TOBIAS
Member, Board of Veterans' Appeals